Citation Nr: 1813305
Decision Date: 03/07/18 Archive Date: 03/14/18
DOCKET NO. 12-11 598A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey
THE ISSUES
1. Whether new and material evidence has been presented to reopen a previously denied claim of entitlement to service connection for posttraumatic stress disorder (PTSD).
2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD.
3. Entitlement to service connection for tinnitus.
4. Entitlement to service connection for sleep apnea.
5. Entitlement to an increased rating for residuals of a right thumb injury, currently rated as 10 percent disabling.
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
M. Taylor, Counsel
INTRODUCTION
The Veteran served on active duty in the United States Army from May 1983 to October 1991.
This matter comes before the Board of Veterans' Appeals (Board) from October 2007 and January 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).
In response to the RO's notice to the Veteran that the transcript of his October 2015 Board hearing was unavailable, in December 2015, the Veteran stated that he desired another hearing. In addition, that same month, the Veteran filed a substantive appeal with respect to service connection for sleep apnea and requested a Board hearing.
In July 2017, the Veteran was notified of the Board hearing scheduled in August 2017. Later that same month, he withdrew the hearing request.
In January 2018, based on the Veteran's December 2017 submission, the Veteran's motion to advance the appeal on the Board's docket pursuant to 38 C.F.R. § 20.900 (c) was granted.
The issues of whether new and material evidence has been presented to reopen a previously denied claim of service connection for PTSD and entitlement to service connection for tinnitus are addressed in the decision below. The underlying issue of entitlement to service connection for a psychiatric disorder, to include PTSD, along with the service connection claim for sleep apnea, as well the increased rating claim for residuals of a right thumb injury, are addressed in the remand section below.
FINDINGS OF FACT
1. A September 2005 rating decision denied entitlement to service connection for PTSD; the Veteran did not appeal that decision or submit new and material evidence within one year of notification of its issuance.
2. Evidence received more than one year since the September 2005 rating decision is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the Veteran's claim of service connection for PTSD.
3. Resolving all doubt in the Veteran's favor, his tinnitus had its onset in service.
CONCLUSIONS OF LAW
1. The September 2005 rating decision denying service connection for PTSD is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017).
2. The criteria to reopen the claim of entitlement to service connection for PTSD are met. 38 U.S.C. § 5108 (2012); 38 C.F.R. 3.156(a) (2017).
3. The criteria for entitlement to service connection for tinnitus are met.
38 U.S.C. §§ 1110, 1131, 1154, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Petition to Reopen
By September 2005 rating decision, the Veteran's claim of service connection for PTSD was denied. He was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. Thereafter, nothing further regarding the claim was received until January 2007. No new evidence or notice of disagreement was received by VA within one year of the issuance of the September 2005 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103.
With respect to the Veteran's January 2007 assertion to the effect that he did not receive notice of the September 2005 rating decision, there is no indication in the record that the notice of the rating decision was not received. See Ashley v. Derwinski, 2 Vet. App. 62 (1992) (regarding the presumption of administrative regularity that public officers have properly discharged their official duties in absence of clear evidence to the contrary); Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994).
Although the actual notice letter is not in the claims file, this fact alone does not constitute clear evidence to overcome the presumption of regularity. See Miley v. Prinicipi, 353 F.3d 1343 (fiding no legal principle that barred the use of the presumption of regularity simply because the record did not contain a dated copy of the decision notice itself or some other document reflecting the precise date on which the notice was purportedly sent); Kyhn v. Shinseki, 716 F.3d 572, 577-78 (Fed. Cir. 2013) (explaining that the regular practice of VA officials providing notice of a VA examination is not supported by law or policy, unlike for example, the practice to mail the Veteran notification of a rating decision, which is referenced in 38 U.S.C.A. § 7105(b)(1)). Here, the Veteran's mere assertion of nonreceipt, standing alone, does not rebut the presumption of regularity in VA's mailing process. Jones v. West, 12 Vet. App. 98, 102 (1998); see also Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001) (presuming VA officials acted consistently with their legal duty under 38 U.S.C. § 5104(a) to mail the Veteran notice of appeal rights when no copy of such rights were of record). As such, the presumption of regularity has not been rebutted with respect to the fact that the RO mailed the Veteran notice of the September 2005 rating decision.
By rating decision dated in October 2007, the RO denied reopening the claim for service connection for PTSD. The Board construes the Veteran's August 2008 submission noting PTSD due to more than four years of service in a combat zone as a notice of disagreement with the October 2007 rating decision. 38 C.F.R. § 20.201 (2008). Thus, finality did not attach to the October 2007 rating decision and the claim remained pending. An appeal consists of a timely filed NOD, and after a SOC has been furnished, a timely substantive appeal. 38 C.F.R. § 20.200, see 38 U.S.C. § 7105. In view of the May 2012 statement of the case (SOC) and timely substantive appeal, the appeal with respect to whether new and material evidence has been presented to reopen the service connection claim for PTSD stems from the October 2007 rating decision.
The Board finds that new and material evidence has been submitted so that the previously denied claim for PTSD is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). See also VA inpatient records in July 2010; March 2017 letter from the Army Board of Correction of Military Records (ABCMR).
Service Connection for Tinnitus
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R.
§ 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).
The Board finds that service connection for tinnitus is warranted. The Veteran has competently reported ongoing, recurrent tinnitus during the appeal period, and that his tinnitus began during his active duty service in Germany. See Charles v. Principi, 16 Vet. App. 370 (2002); May 2012 VA Form 9; September 2010 VA examination report. Additionally, the Veteran's report of excessive noise exposures during active duty, particularly during his field exercises, is consistent with the circumstances of his service. 38 U.S.C. § 1154(a). Even though his service treatment records are silent for reports of tinnitus in service, the Veteran is competent to give reports concerning his noise exposure and the onset of his tinnitus in service, and the Board finds his reports to be credible. See Layno v. Brown, 6 Vet. App. 465 (1994). Thus, affording him the benefit of the doubt, all three elements necessary to establish service connection have been met.
ORDER
New and material evidence having been received, the claim of entitlement to service connection for PTSD is reopened; to this limited extent, the appeal is granted.
Service connection for tinnitus is granted.
REMAND
The Veteran seeks service connection for a psychiatric disorder, to include PTSD. The record reflects a diagnosis of PTSD, to include in a June 2004 VA PTSD examination report, as well as VA inpatient records in July 2010 referencing PTSD related to fear, hypervigilance, and guilt, related to in-service traumas. The Veteran maintains that his psychiatric symptoms are a result of stressful experiences during service, to include in association with fear of hostile activity and/or personal assault.
The Board notes that although the RO found there was a lack of information required to corroborate in-service stressors associated with the diagnosis of PTSD, in a July 2004 submission, the Veteran noted that during service between 1986 and 1989, while stationed at Camp Darby, Italy, he witnessed a fellow soldier member "SP/4 Hinkle" (also referenced as "Hindle"), who was under his command, lying dead on the ground with a 21/2 ton truck on top of him as a result of a motor vehicle accident, and that he has had nightmares of the service member's death ever since. In addition, he noted a similar incident in which fellow service member SP/4 "Bearkoff" was killed. Further, in an October 2015 submission, he stated that PTSD had its onset during service as a result of his Sergeant having beaten him for falling asleep at the switchboard while on guard duty. In addition, he noted that during service in Italy, for three years in a row, his unit was on temporary duty (TDY) to Turkey for 30 days at a time, and that on one occasion, his unit was attacked by Turkish soldiers resulting in a firefight. He added that, at that time, he was married and living off base in Italy, and thus his separate ration pay was deducted because the unit was eating in the field. Additionally, he noted that in 1988 or 1989, while stationed in Italy, the truck he was driving hit a tree, and that he was knocked unconscious. He added that upon regaining consciousness, there was smoke everywhere, and he had to drag the unconscious passenger out of the vehicle. He added that a log book pertaining to vehicle information had to be signed every day.
The Board notes that although service personnel records (SPRs) do not reflect service in Turkey, the SPRs show that the Veteran was stationed in Germany from 1983 to 1985 assigned to the HHB 2/6th FA BN. In addition, he was stationed in Italy from 1986 to 1989 attached to the 167th Sig Co 509th Sig BN. Further, an April 1988 treatment record notes that he was on TDY in Germany from Italy. TDY orders are not associated with the SPRs.
In addition, the service treatment records (STRs) reflect inpatient treatment for alcohol and/or substance abuse while on active duty in November 1990 with complaints of depression noted in association with use. The Board notes that although the Veteran was discharged from the military under Chapter 9 provisions, a March 2017 decision of the ABCMR reflects that the character of the discharge in1991 was upgraded to Under Honorable Conditions.
In addition, a February 2015 VA treatment record notes that the Veteran complained of depression and PTSD as a result of having lost men under his command as Drill Sergeant.
In view of the above, the issue is remanded for additional development. See VBA Manual M21-1, IV.ii.1.D.
The Board notes that in Gagne v. McDonald, 27 Vet. App. 397, 403 (2015), the United States Court of Appeals for Veterans Claims (Court) held that limiting a request for records to a 60 day window was simply an effort to ease the workload of employees tasked with searching records, and did not establish a search would be futile, or that the records do not exist or are not in the custodian's possession. If a limited time period is necessary to request development (such as a 60-day period), multiple requests should be made to cover the entire time period claimed by the Veteran.
In addition, and although the Veteran failed to report for the scheduled VA examination for service-connected residuals of a right thumb injury in February 2015, in view of his changes of address reflected in the claims file in March 2015, and the reason the case has been advanced on the Board's docket, the Board finds that the Veteran may not have had actual notice of the scheduled VA examination, and should be afforded another opportunity to report for a VA examination necessary to adjudicate the increased rating claim.
With respect to service connection for sleep apnea, a March 2015 VA treatment record notes a diagnosis of sleep apnea in 2011. The Veteran stated that his sleep apnea was caused by exposure to burn pits, gas chambers, and tear gas during service, and/or secondary to PTSD and service-connected history of duodenal ulcer with scarring of the duodenal bulb. It was noted that an opinion as to causation could not be provided without the Veteran having had a sleep study during service, and it was recommended that he contact a Compensation and Pension doctor. In view of the evidence and the Veteran's assertions, VA examination is warranted.
Prior to the examinations, any outstanding records of pertinent medical treatment must be obtained and added to the record.
Accordingly, the case is REMANDED for the following action:
1. Contact the appropriate service department and/or records custodian(s), to include the National Personnel Records Center, and request copies of all TDY orders, accident reports, and disciplinary records pertaining to the Veteran, as well as copies of vehicle logs, and unit histories submitted by the 167th Sig Co 509th Sig BN from 1986 to 1989, and by the HHB 2/6th FA BN for 1983 through 1985.
2. Request that the Defense Finance and Accounting Service provide the Veteran's pay vouchers (DA Form 2139) and his Leave and Earnings Statements for 1986, 1987, 1988, and 1989, and interpret whether any of those statements indicate that the Veteran spent any time in Turkey.
If such information is not available from the Defense Finance and Accounting Service, ask where such information may be obtained. A failure to respond or a negative reply to any request must be noted in writing and associated with the claims file.
Efforts to obtain such records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by each Federal department or agency from whom they are sought. 38 U.S.C. § 5103A (b); 38 C.F.R. § 3.159 (c)(2).
3. Attempt to verify the Veteran's reported stressors, to include those in the Veterans July 2004 and October 2015 submissions, including with respect to the referenced fatalities at Camp Darby from1986 through 1989; an attack on his unit by Turkish soldiers; a personal assault, and involvement in a motor vehicle accident in 1988 or 1989 in Italy. See Gagne v. McDonald, 27 Vet. App. 397 (2015) (VA's duty to assist is not bound by the Joint Services Records Research Center's (JSRRC) 60-day limitation for stressor verification requests, and the fact that multiple records searches would burden JSRRC employees does not mean that those efforts would be "futile.").
All steps taken in attempting to verify the incidents and the Veteran's exposure to such should be clearly documented in the claims file.
4. After completing all development above, arrange for the Veteran to undergo a VA examination to address the etiology of his psychiatric disorder(s), to include PTSD. The claims file must be made available to the examiner for review. All necessary tests should be conducted.
Based on the examination results, the examiner is asked to provide an opinion in response to each of the following:
(a) Provide a current diagnosis for any and all psychiatric disorders found extant, to include PTSD. If the Veteran previously had any such medical condition, but it is no longer extant, when did that condition resolve?
(b) For each diagnosed disorder, is it at least as likely as not (a 50 percent or greater probability) that the disorder had its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service? If PTSD is diagnosed, please specify whether that diagnosis is related to the Veteran's fear of hostile military or terrorist activity, and if not, identify the stressor(s) upon which the diagnosis is based.
In rendering the opinion, the examiner should address the November 1990 active duty inpatient records noting depression, as well as the Veteran's lay assertions regarding the history of his symptomatology.
A rationale for all opinions expressed should be provided.
5. Schedule the Veteran for a VA sleep apnea examination by an appropriate medical professional. The entire claims file must be reviewed by the examiner. The examiner is to conduct all indicated tests.
The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that sleep apnea:
(1) had its onset in service or is otherwise related to service, to include as a result of exposure to burn pits, gas chambers, and tear gas therein;
(2) is proximately due to his service-connected history of duodenal ulcer with scarring of the duodenal bulb or a psychiatric disorder, if service-connected; or
(3) has been aggravated (worsened) by his service-connected history of duodenal ulcer with scarring of the duodenal bulb or a psychiatric disorder, if service-connected
In rendering the opinion, the examiner should address the Veteran's lay assertions regarding the history of his symptomatology.
A rationale for all opinions expressed should be provided.
7. Schedule the Veteran for a VA examination to assess the severity of the service-connected residuals of a right thumb injury. All indicated tests and studies should be performed and all findings reported in detail.
8. Notify and explain to the Veteran the consequences of his failing to report for the VA examination with respect to both the service connection and increased rating claims, citing any relevant regulations, including 38 C.F.R. § 3.655.
9. Finally, readjudicate the appeal. If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112.
______________________________________________
S. BUSH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs